Posts

Bringing Receipts: Print Date: 10/22/20

/22 Comments/in , , /by

The Delaware Courthouse has started making exhibits from the Hunter Biden trial available. There are a few interesting tidbits about the paperwork from the gun shop.

The background check form shows that it was submitted at 6:36PM on October 12, 2018 and came back at 6:37PM.

We knew that already. Ronald Parlimere, the gun shop owner who tried to politicize this in 2020 only to belatedly attempt to doctor the forms in 2021 when the ATF came asking, emphasized that detail to Derek Hines and Erika Jensen when they asked him about the belatedly doctored records a few weeks ago.

Based on Palimere’s review of the documents related to the sale of the revolver, Biden made the purchase of several items including the Colt Cobra revolver at approximately 6:36 p.m. on October 12, 2018. The FBI National Instant Criminal Background Check System (NICS) check came back in about a minute and was a very fast response.

In the interview, Parlimere made some kind of connection between reviewing the form and media attention from people like Tucker Carlson he says happened in 2021. That seems to be one of his excuses for not properly annotating the change to the form three years after the fact (the other being, he didn’t want to call Hunter Biden to get the proper ID he hadn’t gotten years earlier).

Palimere scanned and emailed the certified 4473 to Reisch using his StarQuest email address, [email protected]. Palimere uses this email address exclusively and it is not shared by other StarQuest employees. The form was then filed away. Palimere did not handle the form again for three years and until he was requested to turn it over to ATF SA Veronica Hnat on September 23, 2021.

In 2021, Palimere had significant media attention and he had news crews, Tucker Carlson, the ATF and the FBI contacting him. He received numerous contacts from media including to his email address and on his phone.

Palimere was contacted by Hnat who said she wanted to come by to take custody of the Form 4473. Palimere ultimately went to the ATF building in Wilmington, Delaware, and turned over the annotated 4473. Palimere received a receipt for property from the ATF. Hnat allowed Palimere to make a copy of the annotated 4473 for his records.

[snip]

At the time it was a big scandal and there was intense attention on the incident. It was on prime time on every news channel and USSS was saying they never went into StarQuest. Palimere and the other employees heard that Mac Isaac of the computer store was in protective custody. They were all scared to death. Palimere felt it was necessary to annotate the Form 4473 because he felt they were going to get in trouble just for going up against Biden.

Anyway, what I find interesting about the timing of the background check is that it took another 16 minutes to ring up the purchase, as indicated by the red rectangle on the receipt.

I’m not sure long it should take after all the approvals are done. I do know that Parlimere told Hines and Jensen he wanted to get Hunter out of the store as quickly as possible.

In the case of Biden’s sale, Gordon Cleveland, was the salesman. Palimere was sitting at his desk in the back and Cleveland said something to the effect of, “Hey, Hunter Biden’s here. He wants to use his passport.” Palimere was familiar with Biden’s father’s not being a gun supporter so Palimere thought it would be bad for Palimere’s business to have Hunter Biden seen in his store. Palimere wanted to get the sale completed and get Biden out of the store, so Palimere said yes to using the passport as identification. Palimere never interacted with Biden.

Should it have taken 16 more minutes?

I have no idea. I look forward to Gordon Cleveland’s testimony. He doesn’t have a proffer immunizing him, after all.

According to Erika Jensen’s testimony yesterday, she herself subpoenaed this exhibit.

BY MR. HINES: Q. So looking at the background check paperwork, what does this document appear to show, could you explain it?

A. This is a response for a check of a subject’s background in order to see if they qualify to purchase a firearm.

Q. And when you look at the status on the bottom, what is the status for whether or not Mr. Biden passed the background check?

A. The status response is proceed.

Q. And is that after — that was in the production after the Form 4473; correct?

A. Yes.

Q. Now, turning to page, government’s Exhibit 13(a), page 1, government’s Exhibit 13(a), page 1, is that a receipt — take it down. Is that a receipt that you received from StarQuest?

A. This is a receipt I received in response to the subpoena to StarQuest.

Given the Bates stamp, it would have been included in the production certified by StarQuest on April 24, 2024.

After admitting the exhibit, which was subpoenaed last fall, Derek Hines walked Agent Jensen through the receipt, showing each of the items Hunter Biden bought back on October 12, 2018.

MR. HINES: Move for the admission of 13(a).

MR. LOWELL: No objection.

THE COURT: Thank you. It’s admitted. (Exhibit No. 13(a) was admitted into evidence.)

BY MR. HINES: Q. If we zoom in on the top. Can you please list what the items are that are listed on this receipt?

A. The first item was an Item Number 18654, was a Colt Cobra 38 Special, Talo Classic, with a serial number RA551363.

Then cuing her by asking not what the date was but whether it was the date that Hunter had withdrawn $500 from an ATM, she noted that the date of the receipt itself is October 12, 2018.

Q. This was the day $500 was withdrawn from the ATM?

A. This was on October 12, 2018.

Q. Looking at the bottom, does it say Robert Biden?

A. Yes.

Q. Did you redact the address that’s listed there?

A. Yes.

Hines made two errors. Hunter didn’t withdraw the money from an ATM. He went to a teller, which was rare for Hunter Biden. And it was $5,000, not $500. We know that, in part, because prosecutors want to compare his signature on the withdrawal form with the signature on the gun purchase form.

Ah well. In the grand scheme of the errors Derek Hines has made, I consider this a fairly minor one.

Anyway, until after we get the Cleveland testimony — to learn why it took another 16 minutes to complete the sale — I’ll hold off on my curiosity about why it took 16 minutes to complete the sale.

In the meantime, though, I want to consider what the other date on the receipt means.

October 22, 2020.

You see, according to Abbe Lowell, in October 2020, Palimere and some buddies had “a plan to send [Hunter’s gun purchase form] to others” to make sure “the gun sale issue and the form [would be] exposed during the Presidential campaign.” But first they “had to get their stories straight.”

It also reveals a now-exposed attempt by the gun store to fabricate a false narrative about the gun sale. Palimere said the addition of the seller transaction serial number (“5,653”) may have been added on October 26, 2018. (TAB 4, Palimere FD-302 at 4). He said the vehicle registration reference was added in 2021. Yet, the government provided WhatsApp communications from October 2020 and February 2021 between Palimere, friends of his, and then-Delaware state trooper Vincent Clemons3 (see TABs 6 – 6C), all of which refer to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.

3 Not to be lost is the fact that Clemons was the Delaware State Police officer who first arrived at Janssens’ grocery store on October 23, 2018 when Hallie Biden threw a bag containing the handgun into a trash can in front of the store. It was Clemons who took statements about the handgun from both Hallie and Hunter Biden and was part of filling out an official police report on the issue. Two years later, he is in the communications with Palimere about the Form 4473, one of which states: “Yep your side is simple – Hunter bought a gun from you, he filled out the proper forms and the Feds approved him for a purchase.” (emphasis added). Palimere later responded, “I’ll keep it short and sweet as well: Hunter bought a gun. The police visited me asking for verification of the purchase and that’s all I can recall from that day. It was over 2 years ago.” (TAB 6B, 10/26/20 Palimere-Clemons Texts at 4, 6.) The reference to filling out the “proper forms” is not lost on defense counsel given what transpired thereafter. And, despite the importance of Clemons (e.g., the person who actually took the statements), the Special Counsel is foregoing him as a witness to call two other Delaware officers instead.

Derek Hines says that’s not right, and successfully pitched all this a claim of political bias.

These selected portions3 of communications by Palimere to two friends and also to Sgt. Clemons – were made two years after the events in question when defendant’s father was a political candidate. The defendant inaccurately summarizes them as referring “to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.” Supp. Resp. p. 8 and n. 3. Nevertheless, he clearly wishes to confuse the jury by introducing these spliced, non-relevant communications to incite prejudice and emotion among the jury to distract from the elements of the crimes that were complete years before.

And because she fell for one of Derek Hines’ false claims again, Judge Noreika prohibited any of these communications from 2020 from coming in as evidence.

3. Questioning, testimony, evidence or argument, including but not limited to, the additional exhibits designated by the Defendant as tabs “6-6C” to his supplemental submission regarding any witnesses’ political bias are excluded from introduction or admission at trial because such questioning, testimony, evidence or argument is not relevant, is unduly prejudicial and invites nullification.3

2 The government has stated that it intends to call Gordon Cleveland, a gun shop employee, who will testify that he watched Defendant fill out Section A of the Certified Form and that Defendant checked “no” to question 11e about being an unlawful user or addict. Both the Certified Form and the 2021 Form have the same check mark (“X”) responding “no” to question 11e. The addition of “DE VEHICLE REGISTRATION” to a different section of the 2021 Form after the Defendant filled it out does not have “any tendency to make” those two facts, which are “fact[s] of consequence in determining” the charges – that he filled it out and that he said he wasn’t an unlawful user of or addicted to a controlled substance – more or less probable. F.R.E. 401. The Court also agrees with the government that Defendant’s conspiratorial theory about “doctored” forms and currying favor with the government is unsupported rhetoric, which would be prejudicial and confusing to the jury.

Through his considerable power of prosecutorial dickishness, Derek Hines got Judge Maryellen Noreika to exclude these 2020 communications from evidence.

And then he submitted one himself.

Update: In leading gun salesman Gordon Cleveland in the sale yesterday, Derek Hines corrected himself to say that this was a reprint of the receipt.

Q. I’m showing you Exhibit 13(a). Is this the receipt, a reprint of the receipt that rang out the sale for Mr. Biden that day?

A. Yes, it is.

Gaps and Forms: Hunter Biden’s Defense

/41 Comments/in , , /by

The first day of the Hunter Biden trial revealed a lot about gaps in the prosecution’s case and Abbe Lowell’s plan to mount a defense.

As this post will show, it will be easier for prosecutors to prove Count 3, Possession of a Firearm by a Drug User or Drug Addict, than the two gun form crimes, even with Judge Noreika’s decision preventing Hunter from discussing how the gun shop sold a gun without obtaining the required ID.

What do prosecutors have to prove?

There are three counts against Hunter Biden: two for lying on a gun purchase form, and a third for possessing a gun while either being an addict or using illegal controlled substances. Given what will already be stipulated (things like that the gun shop is a federally licensed store), here’s what prosecutors have to prove for each:

Count 1: False Statement Material to Firearms Sale 18 USC 922(a)(6)

  • Whether the defendant made a false statement when he filled out the Form 4473
  • Whether the defendant knew the statement was false
  • Whether the false statement was material to the sale

Count 2: False Statement in Firearms Transaction Record 18 USC 924(a)(1)(A)

  • Whether the defendant made a false statement when he filled out the Form 4473
  • Whether the defendant knew the statement was false

Count 3: Possession of a Firearm by a Drug User or Drug Addict 18 USC 922(g)(3)

  • Whether the defendant was either an unlawful user of a controlled substance or a drug addict
  • Whether the defendant knowingly possessed a firearm
  • Whether the defendant knew he was an unlawful user of a controlled substance or a drug addict at any point in time between October 12 and October 23, 2018

Counts 1 and 2 involve Hunter Biden’s mindset at the moment he filled out the gun form on October 12. Count 3 involves what happened between October 12 and 23.

Note: Prosecutors are asking for a unanimity ruling on Count 3, meaning they want all jurors to agree on at least one of those conditions, that Hunter was an addict, or that Hunter used controlled substances while he possessed the gun.

What basis might Hunter Biden have for appeal?

If Hunter Biden is convicted, he will undoubtedly appeal. He would appeal on the rulings Judge Noreika already made. Those are:

  • His diversion agreement immunized him from these charges
  • This was a case of selective and vindictive prosecution and a violation of separation of powers
  • 18 USC 922(g)(3) is unconstitutional
  • David Weiss’ appointment and funding were unlawful

In addition, Hunter would appeal on at least two trial related issues:

  • As applied constitutional challenge to 18 USC 922(g)(3)
  • With her ruling on the gun form, Judge Noreika impaired his Sixth Amendment right to confront the gun shop employee witnesses against him

There’s an important dynamic here. The main gun charge, 18 USC 922(g)(3), might be appealed because it is unconstitutional for everyone under Bruen, or for the specific circumstances of Hunter Biden’s purchase, an as-applied challenge. But even if it were overturned, prosecutors have argued that the two false statements charges — particularly Count 2, which doesn’t involve materiality — would survive. Of course, those two false statements charges should be relatively easier to defeat, if Hunter were allowed to use the purchase form the gun shop doctored.

This is one of a number of reasons why Sarah Isgur’s argument that Hunter should just plead didn’t hold up. Because even a successful appeal on what Isgur mistakenly believed was his best appeal wouldn’t eliminate the exposure on gun crimes.

What evidence do prosecutors have?

There is no doubt that Hunter Biden is a recovering addict. The public, which has seen the pictures and even seen Hunter’s public statements, has little doubt of it. But what jurors will be considering is slightly different: whether Hunter considered himself an addict on October 12, 2018, whether he considered himself an addict at any time over the next 11 days when he possessed the gun, or whether he used controlled substances — crack — over those 11 days.

The government case has some surprising holes, because both of their main sources of evidence — Hunter’s memoir and his own digital evidence — actually don’t say much about his addiction or drug use over those 11 days.

Derek Hines spent much of yesterday playing excerpts of the audiobook of his memoir. But at least 11 of around 17 excerpts predate a rehab attempt Hunter made in August 2018 (many date to 2016), and so don’t say what the state of his addiction was for that period in 2018, and a number of them significantly postdate that period.

Update: The Court has posted yesterday’s exhibits here. Here’s the memoir as it came in as a physical exhibit. This is the entirety of the memoir introduced that pertains to the 11 days in question.

Similarly of the digital evidence submitted yesterday, roughly 29% predates the rehab attempt and 39% post-dates both it and the start of the Ablow Ketamine treatment that Hunter said in his memoir made his addiction worse (though that’s not in evidence).

One thing prosecutors plan to do is argue, fairly, that at all times in the four year period in question, Hunter was an addict. But that’s different than him viewing himself as an addict during those 11 days.

Two women will be absolutely critical witnesses to fill this gap. Zoe Casten, with whom Hunter was having a relationship, will reportedly testify that after Hunter did rehab in August 2018, she spent time with him in September 2018, and he was still using drugs.

Hallie Biden will authenticate a bunch of texts she exchanged with Hunter during the period in question (in pink in the table). Those texts show him telling her he was doing or buying crack, discussing his addiction, and also that he recognized she had taken his gun almost immediately, which will show that he knew he was a gun owner in the period in question. If her testimony is credible, it will go a great way to proving Count 3, because it will show he thought of himself as an addict during the period he owned the gun, probably used crack, and knew that he owned the gun.

Prosecutors have texts showing Hunter buying drugs in May 2018, November 2018, and February 2019. They don’t have any during the period he owned the gun. As a proxy for such proof, they have pointed to how much cash he was withdrawing from his bank account, implying that the cash went to pay for crack. It’s circumstantial, but jurors are instructed to use circumstantial evidence.

Hunter’s defense

To create reasonable doubt in jurors’ minds, Hunter needs to explain what he was thinking when he bought the gun and needs to discredit the evidence that will come in through Hallie that shows he used or considered himself addicted to crack during the 11 days.

To present his mindset when he bought the gun, Abbe Lowell described how Hunter simply wandered over to the gun shop while he was waiting for a replacement phone and got up-sold by the gun shop owner.

Across the parking lot from the AT&T store was another business. StarQuest Shooters and Survival. An interesting name. Later, from the AT&T store, as you’ll see in documents with time stamp, he went in, and you will see when he went into StarQuest, this is what he saw. You will see the evidence of what happened next. On display you will see in the front are a number of utility tools and knives, there were flash lights, and there were BB type guns. You will see that on that day, he bought one of each. So how did the purchase of the handgun come about?

As he walked around, a salesperson named Gordon Cleveland approached him. Mr. Cleveland will be a witness that Mr. Hines said will be theirs. Mr. Cleveland asked Hunter if he was looking for anything in particular. Hunter said he was browsing. Mr. Cleveland led Hunter to a display on the wall where the handguns were. Mr. Cleveland showed him the wall and asked if he was interested in buying a gun. The only time Hunter had any guns before was when he and his brother Beau went skeet shooting with shot guns. Mr. Cleveland explained what could be used at a range and selected a handgun for Hunter to see. Later, Mr. Cleveland also explained to Hunter the need for bullets and a speed loader. Hunter wouldn’t have known what a speed loader was until Mr. Cleveland told him.

But Hunter also confirmed that the gun came with a lock box to carry it in.

Cleveland told the prosecution that he doesn’t much care about paperwork — his job is just to make the sale. He did not walk Hunter through the gun form before he checked the boxes.

And the box that asks about drug use does not include a long paragraph after the fact explaining what it means like — for example — the question about whether you are a felon or not.

There are a whole bunch of tactical reasons why Lowell is doing this, I think, which I’ll return to. Effectively, though, he will argue that because the federal gun form does not define what being an addict is, if Hunter can provide evidence he relied on the form, then his mindset when he checked that box may not qualify him as an addict even though he was under the common jury instructions.

To discredit the evidence that he was using drugs during the period in question, Hunter will effectively argue he was too functional during the 11 days he owned a gun to be using crack, and that his references to being an addict in that period were references to alcohol.

In other words, Hunter will claim that the evidence he was addicted during those 11 days arises from abusing alcohol, not crack.

As to Hallie’s testimony? One thing he will do is attempt to prove that he was telling the truth in this exchange, in which he accused Hallie of taking the gun from the locked box in his truck, and she replied by claiming that the gun was not locked.

Hallie has told prosecutors the lock was broken. Hunter will get one of his daughters and uncle to testify that the lock was not broken. If he can get jurors to believe that Hallie only claimed the box was unlocked to excuse herself for getting him in trouble, then it might support his claim — otherwise a big stretch — that his references to doing crack were just attempts to tell Hallie to bug off.

There is a logic here, especially tactically. But Hunter faces a much steeper challenge on Count 3 than the gun form charges.

But it’s not impossible. Just as a measure of their concern, prosecutors are leaving the “knowingly” prong of the elements of offense off their statements anywhere they can get away with it (though some of that’s just expert prosecutorial dickishness).

It’s one thing to prove Hunter was an addict. That’s easy.

It’s another thing to prove precisely what he was thinking in those 11 days in October 2018.

Special Agent Erika Jensen: Watch the Summary Witness’ Blind Spots

/28 Comments/in , , /by

The only witness who testified at yesterday’s opening day of the Hunter Biden trial yesterday was a 20-year FBI Special Agent named Erika Jensen. As Derek Hines had her introduce herself, she’s just a summary witness, and as presented so far, almost exclusively with regards to, “addiction and illegal controlled substances.” She’ll probably be on the stand for at least an hour today.

Q. Can you describe the types of crimes you have investigated during the course of your career?

A. I am primarily a criminal agent, so I have worked matters such as drugs, gangs, firearm offenses. I have done white collar, which is bank related crime, corruption, and other criminal matters.

Q. Were you assigned to a criminal investigation of the defendant, Robert Hunter Biden?

A. Yes.

Q. Approximately when were you assigned?

A. In the fall of 2023.

Q. Are you testifying today to summarize certain evidence collected during the investigation?

A. Yes.

Q. What kind of evidence are you summarizing today?

A. It’s going to be evidence of addiction and the use of illegal controlled substances. [emphasis]

Now, it is normal for prosecutors to rely on summary witnesses to admit a bunch of evidence. They used Jensen to admit all the parts of Hunter’s book that made his addiction look really bad, a bunch of communications, and select financial records. It is very common for the summary witnesses to be deliberately compartmented from anything prosecutors want to hide from the defense or jury or public.

In this case, the entire prosecution team (with the very notable exception of David Weiss, who has sat in two courtrooms watching Leo Wise make claims that are not true) is effectively a clean team, made up of people who were not part of a lot of sordid things that happened years ago, sordid things that are likely a big part of the reason David Weiss was originally willing to end this investigation with misdemeanors and a diversion agreement. So after Weiss reneged on that plan, using the disgruntled IRS Agents’ complaints as an excuse, everyone got replaced. Poof! Sordid past becomes plausibly denied.

Jensen adds a layer of compartmentation on top of that. Because she only joined the team in the fall, for example, she is likely entirely compartmented from the way Leo Wise chased Alexander Smirnov’s fabrications about Joe Biden. She didn’t do any of the exploitation of the digital evidence. She’s likely not the person who told Derek Hines that sawdust is cocaine, though whoever did was likely playing the role she’s now playing. She’s not the person who made a show of reviewing the digital data after prosecutors finally got a warrant to search for gun crimes in December 2023; a Special Agent named Boyd Pritchard did that (indeed, her summary claims to be relying on the 2019 and 2020 warrants to access the data, something that may come up in cross today).

Again, all of this is common, if not expected. If trials provided opportunity to learn what really went on in criminal investigations, there’d be fewer guilty verdicts.

There are, however, some embarrassing things that Jensen does or likely knows. For example, it appears that, after prosecutors frothed up the entire dick pic sniffing brigade by claiming the pouch in which the gun was found had cocaine residue, they discovered Hallie Biden put the gun there, as Hines made clear in his opening argument.

Hallie found the gun, as well as his drug paraphernalia, drug remnants scattered in the truck. Concerned about the gun, she decided to get rid of it. She panicked, she put the gun in the defendants leather pouch, which was also in his truck, a leather pouch which he used to store his crack cocaine, an accessory, she put the gun, pouch, speed loader and ammunition in a gift bag.

Additionally, Jensen interviewed Gordon Cleveland — alone, a no-no in FBI procedure — about why the gun shop doctored the gun purchase form. That means she’s the only witness to Cleveland’s observation that he doesn’t much care about the documentation. But since that’s not yet in evidence, it’s not clear Lowell will be able to cross-examine her on it (which may have contributed to prosecutors’ decision to start by proving that Hunter was an addict — to protect both Jensen and Cleveland’s credibility after they both did something stupid, though they could bring Jensen back to summarize everything else).

Prosecutors use summary witnesses to protect weaknesses in their case.

But because they do, you can sometimes learn something about a case from the negative space outlined by the testimony of a summary witness. It points to areas where prosecutors wanted their summary witness to remain intentionally dumb.

A glaring example evident already from Jensen’s testimony is Keith Ablow. Derek Hines had Jensen introduce the invoices from a rehab center Hunter attended in August 2018, which will admittedly be an absolutely critical issue of contention going forward (because prosecutors only have testimonial evidence that Hunter used drugs between then and when he bought a gun).

Q. What does the top show, page 1?

A. So the top shows where the e-mail was received from at The View, and it’s sent to [email protected], and the date of 8/22/2018, the time and the attachment of invoice.

Q. What is The View?

A. The View is a detox center, rehab center.

Q. Where is it located?

But he didn’t have her pull invoices relating to the Keith Ablow Ketamine treatment. And when Abbe Lowell asked her about it on cross, she said she was not going to pull any of that evidence, and so could only offer a vague date about when it was.

Q. That’s when he left Delaware to go to Massachusetts for another form of rehab. Isn’t that what happened in the chapter? Isn’t that the date? After —

A. I have a date when he went to Massachusetts, that I saw — I’m not going to pull that from the excerpts though, I don’t know that we have that, but it was November, mid November is what I believe.

Q. So after the October incidents, he goes to Massachusetts and there he is entering another form of rehabilitation, is that your understanding of the timeline?

A. Yes. Yes.

So it was left to Lowell to point out that a great deal of the texts on which she relied came from after that treatment, well after Hunter ever owned a gun.

Q. And then the texts that I started with when I was asking you questions start in the end of 2018 after November, to 2019, we established that timeline; right? I’m sorry, we established that timeline — sorry, we established that timeline, that the —

A. Yeah. Yes, we went over messages from February of 2019.

Q. Following his going to Massachusetts which you and I just established was in November of 2018?

A. Correct.

Q. And that was after the October purchase of the gun?

A. Yes.

Q. And that was after the gun was no longer in his possession?

A. Yes.

Remember: Hines has always very deliberately buried this passage from Hunter’s book.

The therapy’s results were disastrous. I was in no way ready to process the feelings it unloosed or prompted by reliving past physical and emotional traumas. So I backslid.

Unless I’m misunderstanding the excerpts that did come in (which were wildly skewed to years long before he owned a gun), it’s not in evidence. So when Hines relied heavily on some 2019 communications to try to suggest a continuity to Hunter’s addiction yesterday, he didn’t tell the jury that, at least according to Hunter’s own reconstruction, what Hines is relying on is actually worse than his state in 2018, when he bought a gun.

Hines has always been relying on Hunter’s state after Keith Ablow got to him, but yesterday he tried to entirely obscure that fact.

No doubt because he’s relying on massive bank withdrawals as a proxy for spending on drugs the consumption of which he has no direct proof, Hines similarly did not have Jensen tally out what Hunter was spending money on in fall 2018 (and there has been no mention of sex worker payments, which both the prosecution and defense know, but will not explain, made up a big part of those expenses).

Q. And can you go to the next page. It says August 21st. Can you go to the next page? With the amount 5,000. Can you go to the next page, please? And then the next page. And you see the dates, August 23rd of ’18, do you see that?

A. Yes.

Q. Okay. The next page, please? And there is another amount. And then the next page. And it says stabilization, there is another amount. Do you know who paid those invoices?

A. I think I know who paid part of them

Q. Go ahead.

A. But I don’t — I’m trying to think of my source of information, I think it was partially paid, I seen a record in Mr. Biden’s bank account for at least a payment, yes, and I think there were family assisting.

Q. When you were pointing out, for example, the issues of his bank account and the $5,000 that you then talked with Mr. Hines and the other amounts of a few thousand dollars, did you match up those withdrawals to these invoices?

A. No.

Prosecutors use summary witnesses to introduce a lot of evidence, but also to protect weak parts of their case. So it’s worth tracking the negative spaces of where they don’t ask summary witnesses to look.

That may become interesting this morning, as Lowell continues cross-examination.

Jensen’s introduction of the digital evidence was very cursory. Thus far, for example, Jensen’s description of how investigators validated the laptop is laughable.

Q. Ultimately in examining that laptop, were investigators able to confirm that it was Hunter Biden’s laptop?

A. Yes.

Q. How?

A. Among other things, there was a serial number that’s on the back of this laptop that matches the Apple subpoena records that they obtained in 2019, so it matches the registration of this particular device to the iCloud account at a particular date.

Q. And is that serial number FVFXC2MMHB29?

A. Yes.

Q. And that’s also in the Apple records, you said?

A. Yes.

[snip]

Q. Now, you mentioned being able to corroborate that that was in fact the defendant’s laptop. Did you also see information on the laptop when it was examined that showed that he had dropped it off at the MAC shop?

A. So, there was an e-mail that was obtained from the iCloud warrant returned, that showed an invoice from the MAC Shop to Mr. Biden with the — yes.

Q. I’m showing you Exhibit 40. Is that the e-mail you just referenced?

A. One second. Yes.

All she has done, so far, is show that the laptop was at one point registered to Hunter’s account and that John Paul Mac Isaac sent Hunter’s publicly identified email account an invoice. That’s not remotely adequate validation (and note, Hines uses the word “corroborate,” not “validate”). Notably, Hines didn’t ask her about several other things we know Lesley Wolf originally relied on to claim validation, most importantly, calls to and from a phone number belonging to Hunter, as well as a cigar bar purchase. Hines also asked her whether the was Hunter’s, not whether it had a clean chain of custody.

So this, too, may become an interesting negative space as cross-examination resumes.

Keep an eye on the summary witness’ deliberate blind spots and negative space: because that’s precisely what prosecutors are trying to hide.

Update: I’m reading today’s transcripts and several intentional blind spots are clear.

First, she knows almost nothing about finance. She knows less about Hunter’s corporate person, Owasco PC, than about 50 Congressional interns. She didn’t track money flow. She doesn’t know how Hunter paid for rent or where he lived.

And she looked at almost no emails. Which is especially nutty, because she used an email to validate the laptop.

Judge Noreika Joins Derek Hines in Selective Adherence to the Laws of Physics

/28 Comments/in , , /by

In addition to making false claims about Abbe Lowell’s argument, Derek Hines’ successful reply brief excluding the form gun shop employees doctored to cover up their own potential crime made an argument about physics: Anything that happened after Hunter Biden allegedly checked a box could not be relevant to his actions.

II. StarQuest Employees’ Actions After the Defendant Completed Form 4473 §A Are Not Relevant

The government intends to call Gordon Cleveland to testify because he is the witness from Starquest who observed the defendant fill out Section A of the form 4473 where the defendant identified himself and stated that he was not an unlawful user of or addicted to a controlled substance. The other two individuals the defendant has subpoenaed, Turner and Palimere, cannot testify to that fact. They, and not Cleveland, were involved in adding “DE VEHICLE REGISTRATION” to the form more than two years after the defendant filled it out. Palimere exchanged text messages, again two years after the events that are the subject of the indictment, that indicate a bias against the defendant. The addition of “DE VEHICLE REGISTRATION,” and Palimere’s political views are sideshows that the defendant is attempting to inject into the trial and are irrelevant. The government does not intend to call either Turner or Palimere because they lack first-hand knowledge of the defendant’s actions. Their addition of “DE VEHICLE REGISTRATION” to the form after the defendant filled it out does not have “any tendency to make” those two facts, which are “fact[s] of consequence in determining” the charges—that he filled it out and that he said he wasn’t an unlawful user of or addicted to a controlled substance—more or less probable. F.R.E. 401. Therefore, their testimony on the addition of “DE Vehicle Registration” to the form, years after the defendant’s conduct occurred, is irrelevant and should be excluded.

[snip]

Whatever action was taken after the fact with respect to the form is immaterial.

They adopted exactly the opposite approach with communications regarding drug use. Abbe Lowell had tried to exclude the communications — including those after Keith Ablow’s Ketamine treatment made Hunter’s addiction worse — because they were sent so long after the gun purchase and disposal.

But prosecutors argued that communications (and photos and videos) from months after the gun was disposed are somehow proof about what happened in October.

The defendant objects to the messages in Rows 214-292 in the government’s 1006 Summary Chart as cumulative and occurring subsequent to the defendant’s gun purchase and therefore prejudicial under Rule 403.

The redacted message in Row 215 – “that’s a line brighter than throwing my gun in a full trash can in a busy grocery store and then some kid blows his sisters head off and you go to prison for the rest of your life” – is an admission regarding the gun which was made by the defendant to Witness 3 and therefore admissible under F.R.E. 801(d)(2).

With respect to Row 214 and Rows 216-292, these are admissible under Rules 401 and 402 as probative of his active addiction. In Chapter 11 of his book, the defendant admitted that he was actively addicted to crack cocaine between 2015 and 2019. See Government’s Motion to Admit Portions of Defendant’s Book and Audiobook and Motion in Limine to Exclude use of Self-Serving Statements (ECF 119) and Ex. 1 attached thereto. The messages in Row 214 and 216-292 are are relevant because they show that the defendant’s statement in his book was accurate and indeed his addiction continued into 2019, without disruption. The messages have a tendency to make the fact that he was an addict and user more probable than it would be without the messages. Fed. R. Evid. 401(a), 402. Moreover, the fact that he was addicted to crack between the fall of 2016 and the spring of 2019 is a fact of consequence relevant to all three charges in the indictment. Fed. R. Evid. 401(b); see United States v. Corona, 849 F.2d 562 (11th Cir. 1988) (abrogated on other grounds) (evidence of social use of cocaine and admissions during treatment over 2.5 year period is sufficient to sustain conviction). His admissions in his messages have probative value which is not substantially outweighed by a danger of unfair prejudice or other issues under Fed. R. Evid. 403.

Note, as I said here, I think the government is right about Row 215.

And Judge Noreika bought that argument too, deciding to let prosecutors waste hours of jurors’ time hearing messages about buying drugs that date to long after the time Hunter owned the gun.

THE COURT: Okay. Defendant has objected to a number of the government’s objections, first, rows 214 to 292 of the government’s summary chart, Exhibit 18. Those objections are overruled.

Row 215 is a message from the defendant about the disposal of the gun in a trash can in a grocery store, it is an admission and admissible under Rule 801(d)(2). Rows 214 and 216 through 292 are messages probative of defendant’s drug addiction. Although the messages are dated after the date defendant bought the gun, they are not being offered in isolation but rather with other evidence of his addiction before, during, and after the time he purchased the gun. They are circumstantial evidence as to whether he was an unlawful user of, or addicted to any controlled substance when he purchased and possessed the firearm and so they are admissible under rules 401 and 402.

Next, we have a series of photos or videos marked as Exhibits 18C through F. Those objections are also overruled. The primary objection to those is they are dated after October of 2018, for the same reasons I allowed the text, I will also allow those exhibits. They are circumstantial evidence of defendant’s addiction and relevant and admissible.

As to Exhibit 18C, which defendant also objects to as it shows him unclothed, the clip is redacted so that it only shows him from the chest up, so I will not exclude it on that basis.

Similarly, Judge Noreika sustained the government’s objections to virtually all context Lowell had tried to include from the book.

She also seemingly expanded the scope of her ruling on the gun shop actions, prohibiting Lowell from raising anything the gun shop employees did wrong, which I’ll return to.

Noreika’s waste of jurors time may actually work against the prosecutors: Lowell had just a few moments of cross examination regarding all this evidence at the end of today; he started by pointing out that most of the evidence submitted was long after the alleged crimes. I wonder whether jurors will fail to see some really damning texts from the period he owned the gun for the forest of texts that came long afterwards.

Maryellen Noreika Falls for Derek Hines’ False Claims, Again

/44 Comments/in , , /by

If I were a newish judge like Maryellen Noreika, I’d be a bit wary about accepting the representations of a prosecutor like Derek Hines who once claimed that sawdust was cocaine. Particularly when bowing to his request to exclude the original form from a trial about whether Hunter Biden lied on that form.

My post yesterday describing that Judge Noreika had prohibited Hunter Biden from showing the jury the actual physical form on which he is alleged to have lied was based off Derek Hines’ reply to a supplemental response that Abbe Lowell filed on Saturday — but the supplement was still sealed.

So when I suggested that Noreika may have credited as accurate something Hines said, I was just basing that off the fact that every time Hines wails about Abbe Lowell lying, it has turned out that he was covering something up.

Noreika likely credited something misleading Derek Hines said in a reply posted shortly before her order which cites to it (he has, repeatedly, projected his own inaccurate claims onto Abbe Lowell, and this may be an instance where, at the very least, Hines misunderstood a reference Lowell made).

Hines made a big stink about a bracketed reference to “a second form of identification” that Lowell had included in a quote from a 302 recording either one (if you believe Hines) or two (if you believe Lowell) interviews of Gordon Cleveland, the guy who sold Hunter Biden the gun, in 2021.

Cleveland has been entirely consistent on the issue of identification in the two interviews where it came up. Defendants claims he has offered an “evolving story,” but that characterization is not accurate based on defendant’s own quotes from Cleveland’s Jencks material. Supp. Resp. at 5. The only form of ID Cleveland saw was the passport. He never saw a Delaware vehicle registration and never claimed to. Instead, in both interviews he stated that Turner, who handled the background check, may have, but Cleveland didn’t have first-hand knowledge of whether he did or didn’t. In his first interview on September 27, 2021, Cleveland told investigators:

“He said he would provide the copy of the U.S. Passport and the firearm information on a sheet of paper to the person sending the background check in. Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021].” (TAB 3, 10/12/21 ATF EF 3120 at 2, ¶6) (emphasis added). Supp. Resp. at 5 (emphasis added).

The government at this point is obligated to point out that the defendant is again making malpresentations to the Court. In the above quote from his filing, the defendant inserted brackets into a real quote from the September 27, 2021, interview report for Cleveland. The defendant writes in those brackets that “Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021]. Supp. Resp. at 5. What defendant inserted into those quotes in brackets isn’t accurate. The ATF never showed Cleveland “a second form of identification.” If you look at the report, which defendant has and attached to his filing, it says that the only documents that were shown to Cleveland, at any point during the interview, were the following:

The ATF did not show Cleveland “a second form of identification,” as the above list of documents make clear. Defense counsel made that up. [Hines’ bold, Lowell’s italics]

Then Derek Hines accused Lowell of deliberately leaving out part of the 302: Cleveland describing that his colleague, Jason Turner, may have gotten a second form of ID.

What defense counsel chose not to quote from that report was the next sentence: “He said Jason Turner may have gotten the vehicle registration due to the U.S. Passport issue.”

Lowell’s supplemental response got docketed overnight. And it makes clear that (as I predicted), Hines is the one misrepresenting things and leaving pertinent quotations out.

The contested quotation comes in a passage where Lowell lays out inconsistencies in Cleveland’s story.

Cleveland (a government witness) sold Biden the handgun on October 12, 2018 and gave him the 4473 form to fill out. Yet, as to what was and was not on the form, who completed it and when, Cleveland offers divergent explanations at different points in time.

Cleveland was interviewed by ATF Agent Hnat on September 27, 2021, just six days after the actual Form 4473 (with additions) was obtained by ATF, and again on October 7, 2021. The interview notes reflect:

Speaking of his general practice he said, “He then gathers the information provided by the customer for the background check, the customers two forms of identification . . .” (TAB 3, 10/12/21 ATF EF 3120 at 1, ¶2).

With specific reference to Biden, “He said he would provide the copy of the U.S. Passport and the firearm information on a sheet of paper to the person sending the background check in. Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021].” (TAB 3, 10/12/21 ATF EF 3120 at 2, ¶6) (emphasis added).

Now being shown the added information, “He said Jason Turner may have gotten the vehicle registration due to the U.S. Passport issue.” (TAB 3, 10/12/21 ATF EF 3120 at 2, ¶6).

Later, under oath before a grand jury in April 2022—months after the altered Form 4473 was obtained and after he was shown it on September 27, 2021—Cleveland was asked no questions about the identification issue, the added registration information, or the two forms. (See TAB 3A).

But after issues concerning the different versions of the form were raised at the May 14, 2024 status conference, the Special Counsel went back to Cleveland and this is what was explained:

When Biden presented his passport as identification, Cleveland went into the back and asked Ronald Palimere and Jason Turner if it could be used. Cleveland recalls going back out to Biden and saying something to the effect that if Biden was going to use a passport, they would need another form of identification. [] Cleveland thinks Biden went outside and got something, but he can not say with certainty. Cleveland would not have paid attention to the paperwork side of the sale because he had already done his part by working with the customer and making the sale. Cleveland does not think they would have competed the sale without the second identification, though. (TAB 3B, 5/17/24 Cleveland FD-302 at 1).

Thus, even with Cleveland’s evolving story, he cannot say that Biden presented the vehicle registration, but simply assumes that someone else at the gun store would have obtained a second form of identification. Biden should be allowed to challenge this assumption that the gun store would have followed the law in obtaining a second form of identification. [Lowell’s italics, my bold]

As a threshold matter, Hines either lied or is painfully sloppy. Lowell did include that quotation about Turner. It’s right there, on the next line, precisely where Hines said it should be!

I asked Weiss’ spox whether Hines’ false accusation was a lie or just sloppiness (I also asked him to clarify whether Hines got the number of Cleveland interviews wrong). He responded, “As this case is before the court, we will decline to comment beyond our filings.”

But what Hines didn’t include is the context (and here, I do fault Lowell for not indicating whether the 302, which he describes as recording two interviews, distinguishes between what Cleveland said on September 27 and what he said on October 7; also he’s the one who put that bracket in the quote that simply reflects a paragraph break).

Line one: What do you normally do? Cleveland: I ask customers for two forms of ID.

Line two: Did you do that with Joe Biden’s kid? Cleveland: Nope. I didn’t see any second form of ID.

Line three: Well then, who added the second ID to the form? Cleveland: I dunno. Maybe Jason did it?

Right there, Cleveland has already undermined his own testimony, making it clear that (he claims) he always gets two IDs, but then admitting he didn’t here.

And in context, that “second form of ID” refers to the previous line (that’s called an antecedent, Mr. Hines, look it up! You’ll be amazed how grammar works!!).

It’s clear to anyone who knows how to read that Lowell was not referring to what the ATF agent showed Cleveland. It refers to what Hunter did or did not show Cleveland back in 2018. But Hines left it off, perhaps because it would undermine his false accusations?

The rest of the story Lowell’s filing tells is just as interesting. He reveals that the cop who first went to the grocery store to search for the gun in 2018, Vincent Clemons, coordinated his story with the gun shop owner.

[T]he government provided WhatsApp communications from October 2020 and February 2021 between Palimere, friends of his, and then-Delaware state trooper Vincent Clemons3 (see TABs 6 – 6C), all of which refer to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.

3 Not to be lost is the fact that Clemons was the Delaware State Police officer who first arrived at Janssens’ grocery store on October 23, 2018 when Hallie Biden threw a bag containing the handgun into a trash can in front of the store. It was Clemons who took statements about the handgun from both Hallie and Hunter Biden and was part of filling out an official police report on the issue. Two years later, he is in the communications with Palimere about the Form 4473, one of which states: “Yep your side is simple – Hunter bought a gun from you, he filled out the proper forms and the Feds approved him for a purchase.” (emphasis added). Palimere later responded, “I’ll keep it short and sweet as well: Hunter bought a gun. The police visited me asking for verification of the purchase and that’s all I can recall from that day. It was over 2 years ago.” (TAB 6B, 10/26/20 Palimere-Clemons Texts at 4, 6.) The reference to filling out the “proper forms” is not lost on defense counsel given what transpired thereafter. And, despite the importance of Clemons (e.g., the person who actually took the statements), the Special Counsel is foregoing him as a witness to call two other Delaware officers instead.

[snip]

Moreover, it turns out that profiting off an improper gun sale was not the gun shop’s only motive. The gun shop staff recognized Biden and the newly-disclosed evidence from the Special Counsel shows the store’s owner sought to politicize the sale to influence the election, which provides further evidence of bias.

Hines capitalized on Lowell’s mention of the election and Parlimere’s effort to politicize the purchase by presenting this description of a cop and a gun owner coordinating the story they plan to tell as exclusively political.

Among the items the defendant emailed to the Court on Friday night were proposed exhibits – identified as defense tabs “6,” “6A,” “6B,” and “6C” – which suggest that two witnesses are politically motivated. These selected portions3 of communications by Palimere to two friends and also to Sgt. Clemons – were made two years after the events in question when defendant’s father was a political candidate. The defendant inaccurately summarizes them as referring “to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.” Supp. Resp. p. 8 and n. 3. Nevertheless, he clearly wishes to confuse the jury by introducing these spliced, non-relevant communications to incite prejudice and emotion among the jury to distract from the elements of the crimes that were complete years before.

Thanks to this latest filing, the defendant’s strategy is now more apparent. He has returned to a claim that this prosecution was trumped up and politically motivated. But to suggest that the gun store owner’s political opinions, expressed two years after the fact, have bearing on whether or not he lied about his drug use on the form 4473 on Section A is absurd and must be excluded under the rules of evidence. There is no evidence to suggest these communications played any part in the witnesses’ actions or inactions with respect to the defendant. And there is no evidence that the defendant was the target of political animus by either witness.

The fact that witnesses in this case held political beliefs about which they communicated two years after the defendant’s alleged crime cannot possibly have any relevance to any fact at issue. The defendant should therefore not be permitted to present irrelevant, confusing and unduly prejudicial facts regarding witnesses’ political views to the jury. See Fed. R. Evid. 401, 402. Even if the communications were somehow relevant – and they are not – such evidence is unduly prejudicial to the government. Courts have excluded evidence at trial of a witness’s bias under Fed. R. Evid. 403 where admission would confuse the issues before the jury. E.g., Blair v. United States, 401 F.2d 387, 390 (D.C. Cir. 1968) (affirming trial court’s conclusion that the probative effect of the impeaching evidence was far outweighed by the potential prejudice)

That may be enough to get texts showing a cop working on a cover story; Judge Noreika cut and pasted Hines’ language treating these as political, and ruled that Lowell can’t raise politics at all, even though the gun shop owner says he rushed the sale to get Hunter out of the shop because his dad is anti-gun.

But it has me wondering something that Lowell apparently is also wondering.

He learned that Cleveland claimed that he always asks for a second ID because Hines just turned over the earlier 302 and Cleveland’s grand jury testimony, from April 2022, as Jencks. It seems that prosecutors may have provided these WhatsApp texts in response to a request for Brady, after Lowell started looking into the altered document.

But they haven’t provided any earlier interview reports from Ronald Palimere or Jason Turner, the latter of whom is the guy who actually altered the gun form.

2 Because the Special Counsel intends to call only Cleveland as a witness, but likely interviewed and has interview memoranda by other law enforcement who interviewed Palimere and Turner, the Special counsel produced only Jencks material for Cleveland (other than the only recently written FBI 302 of Palimere after the issue was raised at the May 14 status conference). Given the issues raised about the form’s accuracy and reliability, defense counsel believes statements byPalimere and Turner (if they exist) would be Brady material and asked again (after the initial discovery requests in October 2023) for Brady and Giglio material after the May 14, 2024 status hearing and again specifically on May 31, 2024. The Special Counsel has not responded.

It is virtually certain there is at least one earlier interview with Palimere, because Derek Hines began the interview by “remind[ing] Palimere of of the provisions of the proffer agreement,” rather than explaining them as if for the first time.

So … it gets worse, probably.

Nevertheless, Judge Noreika not only cut and pasted Hines’ exclusion of all discussion of politics, but she also parroted Hines’ mockery that someone might shade their testimony to protect their own immunity. (This entire footnote will be ripped to shreds if Hunter Biden has to appeal this case.)

The government has stated that it intends to call Gordon Cleveland, a gun shop employee, who will testify that he watched Defendant fill out Section A of the Certified Form and that Defendant checked “no” to question 11e about being an unlawful user or addict. Both the Certified Form and the 2021 Form have the same check mark (“X”) responding “no” to question 11e. The addition of “DE VEHICLE REGISTRATION” to a different section of the 2021 Form after the Defendant filled it out does not have “any tendency to make” those two facts, which are “fact[s] of consequence in determining” the charges – that he filled it out and that he said he wasn’t an unlawful user of or addicted to a controlled substance – more or less probable. F.R.E. 401. The Court also agrees with the government that Defendant’s conspiratorial theory about “doctored” forms and currying favor with the government is unsupported rhetoric, which would be prejudicial and confusing to the jury.

This is not a judgement — that the fact that the gun shop altered a form after the fact to make it look like they had followed the law wouldn’t suggest they might do that more regularly — is not one I’d want to be living down for the rest of my career as a judge. Especially not given that with Hines, there’s usually something worse about to drop.

Remaining Evidentiary Disputes in Hunter Biden Case

/23 Comments/in , /by

As I laid out, Judge Maryellen Noreika has prohibited Hunter Biden from showing the jury the physical form that is the basis of two of the three charges against him. Her ruling may also have the effect of prohibiting him from explaining circumstances of the purchase — the gun shop owner says he was trying to get Hunter out of his store and so didn’t do the proper due diligence on the ID he showed because of his father, because she has prohibited any discussion of politics, even though by the gun shop owner’s own description, his view about Biden affected how he conducted the sale.

Judge Noreika also ruled against Hunter’s requested changes to the jury instructions and excluded the expert he wanted to call to testify about addiction, while deferring a decision on his forensic expert.

Abbe Lowell has submitted challenges to government exhibits (prosecutors will squeal that he did this late but this is a response to an updated exhibit list they provided on Friday).

Although Judge Noreika excluded lifestyle and spending claims from the trial, the government has listed all of Hunter’s Wells Fargo exhibits for September, October, and November 2018. Lowell objects to these coming in as a whole.

He also objects to three photos from the phone of a woman named Zoe Kesten, who may be the third female witness against him.

Biden objects to three photos included in GTX-38 (“Photos from Zoe Kestan’s iPhone”) as having no probative value and no relevance under Rules 401 and 403. The screenshots with Ms. Kestan and one photo of Mr. Biden sleeping, in which no drug paraphernalia is displayed or otherwise evidence, are not probative of drug use, drug purchasing, or drug-related activity and are more prejudicial than probative. Any testimony from Ms. Kesten about the nature of their interactions can be elicited on direct testimony, without introduction of these three photos.

Page 7: Photo of Mr. Biden sleeping on 6/18/2018 at 10:41 AM

Page 10: Photo of Mr. Biden on facetime with Ms. Kestan on 7/22/2018 at 7:13 PM

Page 11: Photo of Mr. Biden without clothing on and a tattoo on his back on 9/10/2018 at 5:09 PM

If she is the one who will testify that Hunter was smoking crack almost constantly when they were together, prosecutors probably want these photos to prove she was with him. The September photo would be particularly important as it is the single piece of evidence between one of Hunter’s attempts at rehab and his purchase of the gun in October.

Lowell has submitted his request for additional parts of Hunter’s memoir to come in under a rule of completeness; the government objects to all of them. Here’s one example of the kinds of things (Hunter’s requested inclusion is in red) the government is trying to exclude.

This excerpt, in particular, is bound to be very hotly contested.

Finally, and of most obscure interest, Lowell is trying to exclude a significant number of communications — basically the things marked in blue (remember that prosecutors say Hallie will validate the pink files).

They include:

  • All the laptop comms from the last two weeks it was in use
  • A text sent to Hallie about the gun on January 28, 2019
  • Two videos from late December 2018
  • Two photos from January 2019 from when he was at Keith Ablow’s

On paper this makes sense. The charges against Hunter pertain to his mindset on October 12, 2018, and his awareness of drug use and gun possession in the subsequent 11 days. His mindset in February 2019 is absolutely irrelevant to those charges (and, after all, prosecutors have just succeeded in arguing that the gun shop owner’s bias against Joe Biden in 2020 is irrelevant to his actions in 2018).

But these are some of the files that the prosecutors have had a prurient obsession with, repeatedly and falsely claiming that Hunter’s addiction in 2019 shows what his addiction in October 2018 was like.

The January 28, 2019 text to Hallie, however, is one that prosecutors will almost certainly argue goes to the heart of the case.

It describes him yelling at her for throwing away the gun the previous October (though there are related comms from that period that would put this one in context).

And the four visual files are among the sleaziest (and two are Murdoch favorites), several show Hunter nude.

The specific objections regarding those are of interest given questions about provenance. Lowell suggests that a late December video may record the voice of someone besides Hunter.

Pursuant to Federal Rules of Evidence 401 and 403, Biden objects to the use of this video dated 12/29/2018 because it is dated close to three months after the relevant period when Biden purchased a handgun and is more prejudicial and inflammatory than it is probative under Rule 403. GTX-18D is also cumulative of other documentary evidence the government will introduce. Furthermore, to the extent the government also intends to suggest the voice heard in the background is Biden’s, we object to any suggestion this is Biden’s voice.

And Lowell suggests that a January 31, 2019 photo doesn’t establish whose “smoking device” was in a photo.

Biden objects to the use of this partially-redacted photo displaying alleged drug paraphernalia dated 1/31/2019 because it is dated almost five months after the relevant period when Biden purchased a gun, does not establish where the photo was taken and, therefore, who might be the owner of the smoking device that is in the background, and is more prejudicial than it is probative under Rule 403. GTX18F is also cumulative of other documentary evidence the government will introduce

Several of these happen to be the communications whose authenticity are among the most suspect, and if Lowell excluded all the texts from February 25 and afterwards and the two January photos, it would have the effect of excluding all laptop communications not authenticated by Hallie. Which makes me wonder if Lowell is abandoning his plan to challenge the authenticity of any laptop communications.

On Eve of Hunter Biden Gun Trial, Judge Maryellen Noreika Covers Up Possible Gun Crime

/50 Comments/in , , /by

Judge Maryellen Noreika has ruled that Hunter Biden cannot present evidence that, to cover up that StarQuest gun shop sold Hunter Biden a gun without requiring him to show an ID with his address on it, the shop owner and one of its employees falsely claimed they had seen such ID three years after the fact on the physical ATF form.

They doctored the form.

More importantly, the gun shop owner testified that he did so because Hunter Biden listed a celebrity address (his father’s), and also because he wanted to get Joe Biden’s kid out of his store as quick as possible.

By his own testimony, the gun shop owner only belatedly complied with the required record-keeping because of who Hunter Biden is.

Now I get that Hunter Biden cannot claim that he cannot be prosecuted because the gun shop owner also committed a potential crime. Judge Noreika is perfectly correct to prevent that kind of argument.

But Hunter Biden has to be able to use the shop’s admitted willingness to skip documentary steps with a celebrity client and doctor the forms after the fact, because it leaves open the possibility they did that with more than the identification.

In ruling against Biden, though, she said that the gun shop’s willingness to doctor the form after the fact on one issue would not have any tendency to make it more likely they did elsewhere on the form.

Indeed, she seems to misunderstand that the gun shop owner appears to have confessed to doctoring the form.

2. The Court finds that the 2021 Form is irrelevant and inadmissible under Federal Rule of Evidence 401 and excludes it at trial.2 Moreover, even if the 2021 Form were admissible, the Court finds that it is excluded under Federal Rule of Evidence 403 because any probative value it arguably has is substantially outweighed by a danger of unfair prejudice, confusion of issues, and misleading the jury.

2 The government has stated that it intends to call Gordon Cleveland, a gun shop employee, who will testify that he watched Defendant fill out Section A of the Certified Form and that Defendant checked “no” to question 11e about being an unlawful user or addict. Both the Certified Form and the 2021 Form have the same check mark (“X”) responding “no” to question 11e. The addition of “DE VEHICLE REGISTRATION” to a different section of the 2021 Form after the Defendant filled it out does not have “any tendency to make” those two facts, which are “fact[s] of consequence in determining” the charges – that he filled it out and that he said he wasn’t an unlawful user of or addicted to a controlled substance – more or less probable. F.R.E. 401. The Court also agrees with the government that Defendant’s conspiratorial theory about “doctored” forms and currying favor with the government is unsupported rhetoric, which would be prejudicial and confusing to the jury.

One reason her logic he is especially problematic is because it’s clear the form wasn’t prepared at once. The multiple colors make it clear that the date on Gordon Cleveland’s signature — the employee on the hook for selling a gun without seeing an ID with an address on it — was added after the fact, and probably by someone else (Cleveland reportedly testified that his colleague wrote everything in red ink).

Noreika likely credited something misleading Derek Hines said in a reply posted shortly before her order which cites to it (he has, repeatedly, projected his own inaccurate claims onto Abbe Lowell, and this may be an instance where, at the very least, Hines misunderstood a reference Lowell made).

Hines took what appears to be a reference to Cleveland saying he never saw a Delaware registration, and instead insinuated that by that reference to “a second form of identification,” Lowell instead referred to what the FBI showed Cleveland, rather than what Hunter did.

Cleveland has been entirely consistent on the issue of identification in the two interviews where it came up. Defendants claims he has offered an “evolving story,” but that characterization is not accurate based on defendant’s own quotes from Cleveland’s Jencks material. Supp. Resp. at 5. The only form of ID Cleveland saw was the passport. He never saw a Delaware vehicle registration and never claimed to. Instead, in both interviews he stated that Turner, who handled the background check, may have, but Cleveland didn’t have first-hand knowledge of whether he did or didn’t. In his first interview on September 27, 2021, Cleveland told investigators:

“He said he would provide the copy of the U.S. Passport and the firearm information on a sheet of paper to the person sending the background check in. Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021].” (TAB 3, 10/12/21 ATF EF 3120 at 2, ¶6) (emphasis added). Supp. Resp. at 5 (emphasis added).

The government at this point is obligated to point out that the defendant is again making malpresentations to the Court. In the above quote from his filing, the defendant inserted brackets into a real quote from the September 27, 2021, interview report for Cleveland. The defendant writes in those brackets that “Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021]. Supp. Resp. at 5. What defendant inserted into those quotes in brackets isn’t accurate. The ATF never showed Cleveland “a second form of identification.” If you look at the report, which defendant has and attached to his filing, it says that the only documents that were shown to Cleveland, at any point during the interview, were the following:

The ATF did not show Cleveland “a second form of identification,” as the above list of documents make clear. Defense counsel made that up. What defense counsel chose not to quote from that report was the next sentence: “He said Jason Turner may have gotten the vehicle registration due to the U.S. Passport issue.” As defendant noted, Cleveland was not asked any questions about the form of identification that was used in the grand jury so there is nothing inconsistent between his first interview and his grand jury testimony.

Finally, when asked in his second interview on May 17, 2024, about identification he repeated that he only saw the passport and did not see a Delaware vehicle registration:

When Biden presented his passport as identification, Cleveland went into the back and asked Ronald Palimere and Jason Turner if it could be used. Cleveland recalls going back out to Biden and saying something to the effect that if Biden was going to use a passport, they would need another form of identification. [] Cleveland thinks Biden went outside and got something, but he can not say with certainty. Cleveland would not have paid attention to the paperwork side of the sale because he had already done his part by working with the customer and making the sale. Cleveland does not think they would have competed the sale without the second identification, though. (TAB 3B, 5/17/24 Cleveland FD-302 at 1). Supp. Resp. at 5. [Hines’ bracket, which I’ve bolded, only marks paragraph break; my italics]

In every interview Cleveland stated that Turner handled the part of the form that covered forms of identification, Section B, and he, Cleveland, watched the defendant fill out Section A, where the defendant records information about himself and answers the required questions, including the one that is the basis of the charges, namely, whether he was an unlawful user of or addicted to a controlled substance. Here is what Cleveland said in his first interview:

Defendant claims “Palimere was in discussions with Cleveland and Turner on that date about what was and was not on the form and, thereafter, the sale would be made regardless of legal compliance concerns.” Supp. Resp. at 7. That is not true. Defense counsel made that up, too. And the best evidence it is not true is that defendant cites nothing from any grand jury transcript or interview report in support of that assertion in his supplemental response. To be clear, no one has testified or stated in an interview—not Cleveland, not Turner and not Palimere—that they discussed “what was and was not on the form.” All that was discussed was whether a U.S. Passport could be accepted as a form of identification and whether a Delaware vehicle registration was needed as a second form of identification. And no one has testified or stated in an interview—not Cleveland, not Turner and not Palimere—that they discussed “the sale would be made regardless of legal compliance concerns,” because no such discussions occurred. [my italics]

The quote Hines accuses Lowell of excluding — that Jason Turner may have gotten a second form of ID — is utterly consistent with the reading that Lowell was referring to what Hunter showed Cleveland, not what the FBI did.

Even based off what is public, Hines appears to be misreading the rest, too.

Palimere, the gun shop owner, was in discussions with both Cleveland and Turner about what would be used on the form (the passport only). And while inapt, I believe Palimere’s testimony is only consistent with a claim that the sale would be made regardless.

That’s because it was made regardless, after a discussion about whether to get anything more.

In the case of Biden’s sale, Gordon Cleveland, was the salesman. Palimere was sitting at his desk in the back and Cleveland said something to the effect of, “Hey, Hunter Biden’s here. He wants to use his passport.” Palimere was familiar with Biden’s father’s not being a gun supporter so Palimere thought it would be bad for Palimere’s business to have Hunter Biden seen in his store. Palimere wanted to get the sale completed and get Biden out of the store, so Palimere said yes to using the passport as identification. Palimere never interacted with Biden.

[snip]

Normally, they would call a customer if they found an error/omission and needed to annotate the Form 4473. The ability to annotate the Fom 4473 is allowed by the ATF. For this case, a typical customer would have been called and told they needed to come back in and bring registration to show the residency.

Palimere was not about to call Biden. Palimere felt they could not have him come into the store. Plus, Palimere did not want to contact Biden and tell him he needed to come in and he was being investigated.

We can’t be sure (Lowell submitted his filing under seal because it included grand jury and non-public exhibits), but Hines’ representations seem to take imprecise comments from Lowell and read them in a way that makes no sense.

Noreika’s ruling becomes a problem (and likely will require at least clarification) for two reasons that seep into Hunter Biden’s Sixth Amendment right to impeach the government’s witnesses.

First, in the order, Noreika prohibited all discussion of political bias, which Hines suggested Lowell wanted to present exclusively through Palimere’s efforts to make this public before the 2020 election.

3. Questioning, testimony, evidence or argument, including but not limited to, the additional exhibits designated by the Defendant as tabs “6-6C” to his supplemental submission regarding any witnesses’ political bias are excluded from introduction or admission at trial because such questioning, testimony, evidence or argument is not relevant, is unduly prejudicial and invites nullification.3

3 The Court agrees with the government that the political views expressed in 2020 by the gun shop owner, Palimere (who did not witness Defendant fill out Section A of the Certified Form or check the box for question 11e in 2018), are sideshows aimed at tainting or confusing the jury. [my italics]

But Palimere described that he made an affirmative decision to treat the sale to Hunter Biden differently because of who his father is. Palimere freely confessed that he sold a gun without requiring the proper paperwork because Joe Biden is not a gun supporter.

Palimere was familiar with Biden’s father’s not being a gun supporter so Palimere thought it would be bad for Palimere’s business to have Hunter Biden seen in his store. Palimere wanted to get the sale completed and get Biden out of the store, so Palimere said yes to using the passport as identification.

This is politics. It affected the sale. Noreika doesn’t want that to come in because explaining that the gun store didn’t follow the rules with the sale to Hunter Biden and that they did so because of Joe Biden’s politics would be unduly prejudicial.

That strips Hunter of the ability to present key details about the sale.

And Noreika’s ruling may prevent Hunter from impeaching Cleveland.

A prosecutor can’t simply claim, nope, these statements Cleveland made about the form are not inconsistent. That usurps the role of the jury.

And they are inconsistent. In the first interview, Cleveland said that if a second ID was really requested, Turner handled it (it’s unclear whether Turner ever came to the front room, but since he’s the guy who doctored the form, it would be significant if he did). In the second interview, Cleveland claimed to remember asking for it. If his memory is inconsistent on that point, there’s no reason to credit his memory about how the form was filled out.

That, coupled with Cleveland’s claim he didn’t much care about the paperwork, should be fair game for questions about whether Hunter Biden’s part of the form really was filled out properly. As it is, Cleveland has signed the form even though he didn’t do key parts of it. But Noreika’s exclusion of the form will make it nearly impossible to argue that Cleveland’s testimony about the form is inconsistent.

Judge Maryellen Noreika may think it’s a conspiracy theory that the gun shop doctored the form because they wanted to get Joe Biden’s kid out of the shop quickly. Except it is also precisely what the gun shop owner’s testimony says.

Update: One piece of timing of note. ATF picked up the physical form on September 24, 2021. Cleveland was first interviewed on September 27, 2021. It appears they had to have used the physical form, not the scanned one, not least because the reference to the DE registration only appears on page 2 in the form, not the scan (which has a cover sheet). He was not interviewed again until a grand jury appearance. We know investigators did no basic investigative steps (getting a warrant, sending the pouch to be tested) until after the actual indictment.

Which makes me wonder whether they decided not to pursue charges because of this form and now are just (successfully, so far) bulldozing past this real evidentiary problem.

Update: According to the 302 from Cleveland’s May 2024 interview, he stated that he would not have paid attention to the paperwork side of the sale.

Cleveland thinks Biden went outside and got something, but he can not say with certainty. Cleveland would not have paid attention to the paperwork side of the sale because he had already done his part by working with the customer and making the sale. Cleveland does not think they would have competed the sale without the second identification, though.

This is a stunning comment from someone whose name is on the form transferring the gun. I could certainly see questioning about why he signed off on a form without personally taking responsibility for the paperwork, not least because he recognized the passport was not sufficient. His boss has basically put him in a position where he’s on the hook for a crime.

Now, he may contest this representation — 302s are only used to refresh memory, they never go back to the jury.

But if he does, it would be his word against the FBI agent who’ll submit much of the rest of the case, because they broke FBI protocol by not having a second FBI agent there. So Cleveland may be in the position of having to admit he violated gun purchase laws, knowingly, or trying to undercut another key witness.

Compelling Hallie Biden

/51 Comments/in , /by

Hallie Biden is getting married this weekend, apparently between the time her youngest graduated from high school and the ninth anniversary of Beau Biden’s death and the start of the Hunter Biden trial, at which she will be the most important witness. I learned that when I perused the Page Six reporting on how Melania, Barron, and Ivanka all snuck into Trump Tower to commiserate with Donald after he was made a convicted felon.

Goodness knows that woman has been put through the wringer since Murdoch has made Hunter the primary focus of its obsession; I wish her a long, supportive, private marriage.

But first she has to make it through two Hunter Biden trials.

I want to focus on one aspect of the Hunter Biden trial, which starts next week, which has been missed by those doing scene-setters for the trial. This post, on how prosecutors plan to prove their case, and this one, on rulings thus far on motions in limine lay out much of how the trial will go.

Judge Noreika still has to rule on a dispute about whether Hunter Biden will be able to show the jury how the gun shop doctored his purchase form when the ATF asked for the hard copy of it. If she permits that, it makes two of the three charges against Hunter far sketchier, both of which rely on the way he filled out a form when he purchased the gun. Once gun shop employees admit that they didn’t require Hunter to provide a valid ID because they knew who he was, and then doctored the form years later to cover up that they had done so, it will provide an opening for Hunter’s lawyers to raise a doubt about what happened with the form on the front end and certainly whether it was material to the sale (materiality is required by just one of those two counts).

That leaves Count Three, that Hunter was either an addict or a user of illegal drugs during the period he knowingly owned the gun in 2018. As the government laid out and Judge Noreika adopted for her orders, they will only need to prove that he knew he had the gun and either knew he was an addict or that he used a controlled substance in those 11 days in 2018.

Thus, that leaves only the following issues for trial with respect to Count Three: (1) whether the defendant was either an unlawful user of a controlled substance or a drug addict;4 (2) whether the defendant knowingly possessed a firearm, (3) whether the defendant knew he was a unlawful user of a controlled substance or a drug addict at any point in time while he possessed the firearm (i.e., on any date between October 12 and October 23, 2018).

This is the charge that is most ripe to be overturned by post-Bruen constitutional charges, and Hunter plans an as-applied constitutional charge if he is convicted on it. But it is also the one that will be easiest to prove.

To prove it, though, prosecutors will rely heavily on Hallie Biden.

That’s because she exchanged a bunch of texts with Hunter both during the period he had the gun and as he almost immediately realized that she had done something with it on October 23, including these from October 14 where he seemingly describes smoking crack in a car.

Hunter had days earlier lost his phones, and so he was repurposing an old phone when he sent these texts.

The government has repeatedly described that they’ll have a witness — who by description is Hallie — who will testify that she sent and received those messages.

What we’re using on the laptop are messages that will be corroborated by a witness in this case who will testify that she sent those messages and received those messages.

If they can convince a jury these texts are valid representations of Hunter’s mindset at the time, it will be fairly compelling evidence on Count Three.

And that’s why the question of whether and if so how prosecutors compelled Hallie’s testimony is of interest.

In the face of representations from her attorney that she would invoke the Fifth Amendment on the stand, David Weiss has moved to compel her testimony in Los Angeles.

The Special Counsel hereby applies to this Honorable Court for an order compelling Hallie Biden to testify and produce evidence pursuant to the provisions of Title 18, United States Code, Section 6001 et seq., and respectfully represents as follows:

1. Hallie Biden has been subpoenaed to testify before this Court during trial beginning on June 20, 2024;

2. Counsel for Hallie Biden has advised that if Hallie Biden is called to the stand she will at that time refuse to answer questions, invoking the constitutional privilege against self-incrimination;

3. In the judgment of the Special Counsel, the testimony of Hallie Biden may be necessary to the public interest; and

4. Acting Deputy Assistant Attorney General Stuart M. Goldberg, an authorized Deputy Assistant Attorney General of the United States, has approved this application for an order instructing Hallie Biden to testify pursuant to 18 U.S.C. § 6002 and 28 C.F.R. § 0.175(a).

Even though, absent statutes of limitation, her testimony in the Delaware case might be just as incriminating (because she’s the one who disposed of the gun), there’s no sign of such compulsion in the Delaware docket.

There is, however, a sealed filing (uncontested by Hunter’s team) pertaining to the testimony of a female witness that David Weiss has gotten permission to retain under seal until after the witness finishes testifying.

The United States of America, by and through its attorneys, David. C. Weiss, Special Counsel, and Derek E. Hines and Leo J. Wise, Assistant United States Attorneys for the District of Delaware, move that the enclosed filing be filed under seal as well as the accompanying proposed order and requested order from the court. The filing relates to a witness issue in the upcoming trial. The government will move to unseal this filing after the conclusion of the witness’s testimony at trial. In the interim, the government requests that the filings remain under seal to protect her identity from public disclosure so that her security is not compromised and so that there will be no witness intimidation issues that could undermine these proceedings. See United States v. Smith, 776 F.2d 1104, 1115 (3d Cir. 1985).

This isn’t necessarily Hallie: in addition to the female FBI agent and Hunter’s ex-wife, there’s a female witness who partied with Hunter in Los Angeles in spring 2018 whose testimony might have some unique circumstances behind it. But, given the motion to compel her testimony in Los Angeles, there’s a pretty good likelihood it is Hallie.

Indeed, it could be nothing more than a sealed version of the motion to compel in Los Angeles (which for some reason did not obscure her identity), which was filed just three days later.

Obviously, prosecutors have prepped Hallie’s testimony. They claim to know precisely how she’ll testify. So there shouldn’t be too many surprises next week at trial.

If nothing else, however, it would mean two of three key witnesses at trial (the other being the gun shop owner, who testifying under a proffer admitted he only retroactively created a record of having required the proper identification for the sale) had concerns about their own legal exposure for a gun sale made over five years ago. It would mean that prosecutors have decided to pick and choose who’ll face legal liability for those events, deciding that Joe Biden’s kid will be the one who faces legal consequences for a charge no one else would have been charged with under the circumstances.

“True:” Hunter Biden Prosecutor Derek Hines Claims 80-Plus Equals “A Couple”

/35 Comments/in , , /by

In Derek Hines’ reply to Hunter Biden’s opposition to prosecutors somewhat failed bid to substitute summary for proving authenticity of his digital data, Hines accused Abbe Lowell of misunderstanding the digital discovery in the Hunter Biden gun case.

In the remainder of his Response, defense counsel demonstrates (1) they still do not understand the electronic evidence in this case that they received in discovery last fall, and (2) despite claiming they do, they actually have no evidence to give them “reasons to believe that data has been altered and compromised before investigators obtained the electronic material.” Doc. No 151 at p. 1. None of what they claim in their Response is admissible in court, and the government objects to any line of questioning suggesting the trial evidence may have been manipulated because there is no foundation for such questions, they are also irrelevant, and even the inference posed by such a question risks confusing the jury.

As often happens with Mr. Hines (he of the sawdust-as-cocaine error), this seems to be a case of projection.

In an exchange with Judge Maryellen Noreika at last week’s status hearing, Hines suggested that the way to validate digital data that may have been in other people’s hands was to match the content of it to real world events: to tie Hunter’s observation that he was in Delaware to ATM withdrawals made by a guy notorious at Wells Fargo for losing his ATM card.

MR. HINES: Your Honor, one point of clarification I would like to add, too, if I may. So the summary chart, as Your Honor has read, summarizes stuff from Apple. John Paul Mac Isaac, has nothing to do with that data for that production.

THE COURT: I understood that. And as I understood, that’s where the real contest comes in, not from the iCloud, I guess unless the iCloud was backed up at some time during April.

MR. HINES: So it comes from two devices that Hunter Biden had, his phone and his iPad, that were backed up to Apple. John Paul Mac Isaac never had custody of that phone or the iPad at this store. He had the laptop. That stuff that is on the summary chart has nothing to do with what Mr. Lowell is alleging from The Washington Post. What we’re using on the laptop are messages that will be corroborated by a witness in this case who will testify that she sent those messages and received those messages and then a couple of other messages which we have noted on page 3 of our reply. Where there was other corroboration, for example, a message that shows that he’s in Wilmington, Delaware and made an ATM withdraw, that shows that as well. This isn’t some vast array of messages from John Paul Mac Isaac that the Defendant alleges without evidence that he planted into his laptop. To be clear, we’ve asked for reciprocal discovery over and over again. They made this claim in the media that the laptop wasn’t true. We haven’t seen one scintilla, not one message that that isn’t true from the data that law enforcement turned over. And they can’t raise that issue in any meaningful way at trial because there is no evidence of it. We want to make that clear in our reply, the data coming in, and we don’t believe there is any basis for Mr. Lowell to make these kinds of–

To be clear, if Hines is correct that Hallie Biden — the witness he promised, “will testify that she sent those messages and received those messages” — really will validate the messages she and Hunter exchanged in the days immediately after he bought a gun, the entire question of the authenticity of Hunter’s data should be moot.

That’s the most important evidence at trial, because it would (at the very least), show Hunter acknowledging his addiction and probably consuming drugs during the 11 days he owned a gun, going a long way to proving the strongest of three charges against the President’s son.

But David Weiss’ prosecutors are thinking bigger than that.

They’re obsessed with the bacchanalia Hunter had during spring and summer 2018 in Los Angeles, and plan to rely heavily on that — events that transpired before Hunter’s final attempt at recovery before he purchased the gun — to prove his addiction. And they keep claiming the state of Hunter’s addiction after Ketamine treatment from Fox News pundit Keith Ablow shows the state of his addiction in October 2018, when he owned a gun; again, they want to use memoir passages and texts from that period to prove the state of his earlier addiction. There are discontinuities in Hunter’s addiction that make those other periods less probative to the case.

And to submit this evidence, they’re seeking to admit a bunch of communications on either side of rehab attempts that won’t involve a counterpart to Hunter’s communications to validate them, as Hines promises Hallie will for communications during the period Hunter owned the gun.

In this exchange Hines makes some misleading and one outright false claim. He seems to suggest to Judge Noreika that the summary chart only includes stuff from Hunter’s iCloud. He seems to suggest that none of the data in the summary chart went through John Paul Mac Isaac’s hands, when half of it did. Probably that’s just imprecision — a lack of specificity that just some of the messages were from the iCloud, that just some of the messages were from two devices that were backed up to Hunter’s iCloud.

But as to the claim that in addition to the messages that Hallie will validate, there are “a couple of other messages”?!?!

Here’s his description of the “couple” of messages noted on page 3 of the reply.

Messages in Row 85-86 (a message where the defendant says “I need more chore boy,” which is used consistently in the message with how the defendant described “chore boy” in his book), Rows 87 and 135-137 (messages where the defendant says he in Delaware, which is consistent with his ATM withdrawal activity, location information on photographs on his phone, and his admissions in his book), Row 214 (a photograph of the defendant with a crack pipe in his hand), and 216-292 (videos and photographs of the defendant with a crack pipe and drug messages from December to March 2019, consistent with the defendant’s characterization of his activity in his book).

That’s upwards of 80 communications, and he may have excluded a few that don’t involve Hallie (this table breaks out various kinds of comms sourced to the laptop, partly to show outliers, partly to break out comms from the laptop that involve Hallie — marked in pink — and those that do not).

Eighty is not “a couple.”

Even among the texts exchanged with Hallie, I have questions about some, such as the November 3, 2018 text posted without any metadata and with a dark line (as if it came from some other table).

The January 28, 2019 text Hunter sent Hallie, describing that she threw his gun in a dumpster, will be another for which her validation will be key (and for which contextual texts may be pertinent).

I have questions about some of the stuff from iCloud, too — again, because the metadata suggests it does not reflect a backup taken of the device on which the content was captured.

But among the 80-plus other comms, several are presented without the kind of metadata that would make the reliable.

And that’s just what’s included in the summary chart.

Which gets me to the really curious part of Hines’ argument. Both at the hearing and earlier, he impatiently complained that Hunter’s team hadn’t provided any reciprocal discovery — meaning, something like the John Paul Mac Isaac deposition obtained as part of the lawsuit and countersuit (in which a decision has been pending since February). Hines seems to imagine that a witness testifying to altering documents would be the only basis on which Hunter could challenge the authenticity of the digital data prosecutors obtained, whether in public or at trial.

He seems not to have considered whether he already gave Hunter the evidence to challenge the authenticity of such data, using the very same techniques the FBI uses all the time in cybersecurity investigations: the metadata from about six different Hunter Biden accounts.

For his part, Abbe Lowell seems quite certain that some of the material in the FBI’s hands is not authentic. which is different than being confident that some of these communications are.

THE COURT: I understand, but do you disagree if he wants to ask, look, he dropped off the laptop in April, you got it in December, that he can ask that?

MR. HINES: He can ask that timing question, absolutely, Your Honor.

THE COURT: All right.

MR. LOWELL: And one more thing, Judge. I think there may be — I have no quarrel with the point if they have a witness that said I sent this or received this message, of course that’s fine. It’s just that it seems to me their point was they wanted a broad stroke agreement or stipulation that the data is all authentic as opposed to —

THE COURT: And can be tied to Mr. Biden?

MR. LOWELL: Yes. And so I can’t make that because we know to the contrary. I think your point about there might be individual things to raise, if we find that, we will, but I don’t have a disagreement with what you and Mr. Hines just said.

THE COURT: Okay. And I guess we can address that to the extent it comes up in trial. So as I understandit, the government is asking for a ruling that the summary of voluminous messages is appropriate under the Federal Rule of Evidence 1006. Defendant doesn’t object to that. So I will allow this as a summary chart. The government is seeking to have this chart authenticated as of the date that the government received the laptop into federal — some federal agent’s custody. The Defendant does not disagree with that. So I will grant the motion to the extent that is what the motion is seeking.

With respect to whether particular messages on there can be challenged, we will have to take that on a case-by-case basis at the trial.

MR. HINES: Your Honor, on point two that you just read for your ruling, it’s the laptop and the Apple iCloud because the Apple iCloud came into the custody of law enforcement independently of the laptop. I wanted to make sure that was our request as well.

THE COURT: Thank you for that clarification.

MR. LOWELL: One other thing as to what you pointed out in terms of the book. We raised the issue of completeness for their 1006 chart, which we will also talk to them about.

THE COURT: If there is stuff that you want to add.

MR. LOWELL: If not, we will proffer our own if we can’t agree. [my emphasis]

Notably, there has been no discussion of retired Secret Service Agent Robert Savage’s claims that Joseph Ziegler interviewed him based on what both Savage and Hunter claim were fabricated texts; those texts date to the same Los Angeles bacchanalia that Weiss’ team loves.

But being certain that there are some files in Hunter’s digital evidence (and Lowell appears to believe this is true of stuff saved to the iCloud as well) is different than being certain that certain of the communications prosecutors will rely on at trial are fabricated or planted. The import of all this will depend on how much it is — and whether and, if so, how well FBI Agent Erika Jensen, through whom prosecutors wanted to introduce this evidence by using summary in lieu of authentication, can answer questions about digital attribution. She’s likely playing this role because she is not privy to all the technical details about Hunter’s digital data.

Perhaps the most remarkable part of this exchange, however, is that Hines measures this in terms of what is “true,” rather than whether it is “authentic.” “They made this claim in the media that the laptop wasn’t true. We haven’t seen one scintilla, not one message that that isn’t true.” But Hines has already proven that things he deems “true” may not be “authentic.” He claimed, as true, that a message sent by Keith Ablow was a true representation of Hunter’s (powder) cocaine use. Never mind that it was sawdust, not cocaine — that is, it wasn’t even “true.”

But it also wasn’t “authentic.” It wasn’t Hunter’s photo.

This is the mirror image of a logical problem that right wing propagandists (and certain apologists for Russia have) about the laptop and about Russian hack-and-leak efforts: proving something’s authenticity as a way to dodge proving that an authentic message proves the truth claim they’re making. Here, Hines is simply skipping the authentication step (and he may well get away with it).

We shall see next week. Judge Noreika has left the door open to Hunter’s team challenging this digital data (contrary to what some of the reporting on the hearing claimed), and prosecutors have likely left themselves open to more significant challenges by including data that is less probative to their case than the texts Hallie can validate herself.

At the hearing, Judge Noreika also left open the possibility of Hunter submitting on full pages from his memoir, not just the excerpts picked by prosecutors (though her order may be limited to pages, not longer passages).

[T]he motion will be granted in part. The pages offered by the government may be admitted, but the motion is denied to the extent that the government seeks to admit a page from Defendant’s memoir without giving him the opportunity to seek the admission of additional relevant sentences or passages from that same page subject to the Rule of Completeness so long as the statements made meet other requirements for relevance and prejudice. The excerpts by the way still need to come in through a witness.

Now, that being said, I will note that no one has provided me with un-redacted pages from the book, so I can’t tell you at this point whether I view any of the redacted portions to be properly admissible on the Rule of Completeness or the relevance and prejudice, but I do think it’s unfair that Defendant wouldn’t be given an opportunity to establish that.

She has yet to rule on the ATF form doctored after the fact by the gun shop. But Derek Hines did, at least, provide a non-responsive explanation for the source of the three colors on the form.

THE COURT: So you are planning to call Mr. Cleveland. And he is going to say I watched the Defendant fill out the form. I wrote down — did he write down — I noticed that with Mr. Lowell’s motion, he gave me a color copy of the form, which was nice. So is he going to be able to testify who wrote stuff in red, blue, black, whatever?

MR. HINES: Yes, he will. He will testify that Mr. Biden filled out Section A, which is the section that can only be completed by the buyer. And he will testify that he signed the form. You can see his signature on the third page of the form. And then he will testify that Jason Turner filled out Section B of the form. Jason Turner is another employee of StarQuest.

THE COURT: And who filled out — oh, Section B.

MR. HINES: Correct, Section B.

THE COURT: It looks like the same person who makes their zeros like that, but some are in black and some are in red.

MR. HINES: Correct. Based on the information the government has, he will testify that Mr. Turner completed Section B of the form.

Again, prosecutors have a strong case against Hunter Biden. But two of three ways in which they attempted to mitigate the holes in their case have at least partly failed.

Update: Corrected date of November 3 text.

Derek Hines’ Disappearing [Three Colors of] Ink

/51 Comments/in , , /by

In his bid to prevent Abbe Lowell from telling jurors about how the gun shop at which Hunter Biden bought a gun doctored the form on which he is accused of lying, Derek Hines told Judge Maryellen Noreika that Lowell had “inaccurately” claimed there were three or four differences between the original purchase record emailed to ATF and one altered three years later.

[A]t the hearing on May 14, 2024, the defendant inaccurately stated, “There are three or four changes on that form.” Hrg. Trans. at 39:13. That claim is incorrect. As described above, there were only two additions to the Certified Form 4473 after it was filled out on October 12, 2018. [my emphasis]

Hines restated Lowell’s description — “changes” — to address “additions,” and then accused Lowell of inaccuracy.

But he’s covering up that on top of two additions — one an attempt to make it look like the shop had not unlawfully sold Hunter Biden a gun using only his passport as ID — the purported physical copy was instead some kind of scan that hid the fact that the guy who sold Hunter the gun used three different colored inks: Black when he (or someone else) sold Hunter Biden a gun without viewing ID with his address on it.

 

 

Red when he recorded the NCIS background check.

 

 

And blue when he signed it, possibly without a date.

 

 

As Lowell noted in his response revealing the multiple colors, at the status hearing where he first raised this, Hines told Judge Noreika that the doctored form — the one he wants to exclude — had more evidentiary value than the original one, because it reflected Hunter showing a second form of ID.

MR. LOWELL: In terms of form, on Friday, the Government explained to us something that we asked them about that was in their discovery, but I did not understand the ramifications until Friday.

The 4473 form that is the subject of one of the counts, the Government produced two versions of that to us. One, they indicated a week or so ago that they are going to seek into evidence for it being the contemporaneous filing of the form in October of 2018.

On Friday, they informed us that the second form that was in discovery came to them in 2021, I believe. And we didn’t know that. And it’s a different form. I mean, it’s the same form. It has different material on it. And when that was put on and who put it on, we asked them on Friday, and they said they do not know.

So, consequently, that becomes a subject of importance to us as to how the actual form that will be the one that they’re not putting into evidence — by that, I mean the physical form that they obtained from the gun shop in 2021 is the form.

What they are seeking to put into evidence is a faxed or PDF’ed copy of that from October. The actual form has new handwriting on it, which is why we’re looking into that issue as well. And I didn’t know that until Friday.

So there are some things that I am asking that I have the ability to present in the way of experts, and we’re doing the best we can on that.

[snip]

MR. HINES: With respect to the Form 4473 and the two versions, there are two forms 4473 produced in discovery. This isn’t a nefarious issue.

In October of 2018, the store owner of Starquest e-mailed the form that Hunter Biden had signed, prepared, and was dated on that date, to an ATF agent. That form has been produced in discovery. All of the boxes on that form, with the exception of one box, matched a form that was later turned into the ATF approximately two years later, in, I believe, 2021; although, we’ve given the exact date to defense counsel. And the only difference is in that intervening period, someone had written Delaware Vehicle Registration on one of the lines, as an additional ID that Mr. Biden had presented.

So, frankly, that latter form is, from an evidentiary perspective, more valuable to the Government because it’s one more indicia of identity that Mr. Hunter Biden had given to the Starquest owners and salespersons when he bought that gun. [my emphasis]

Hines went on to explain to Judge Noreika that he thought it was a nonissue that the gun shop was doctoring forms years after the fact, which is a pretty weird claim from prosecutors insisting that Hunter Biden face consequences for allegedly lying on that same form five years ago.

Nonetheless, out of fairness, we have agreed that we should be using the form as it existed in October of 2018 that’s attached to an e-mail and has been authenticated by Starquest so that there’s no ambiguity or uncertainty regarding when the Delaware vehicle registration was written on there because that could have been done years later in advance of turning it into the ATF. We don’t know exactly when or who did that, but we think that this is really a nonissue, nonevent.

THE COURT: In advance of turning it in to the ATF, but the e-mail was turning it in to the ATF already?

MR. HINES: The e-mail was to the ATF. So the AFT [sic] has this e-mail. That’s been produced in discovery. That e-mail attaches the form that existed without that one — it says — I think the line item is like 19, and it says “supplemental identification,” and they had written “Delaware vehicle registration” on the later — on the version that was turned into ATF. But in the e-mail, it’s the form that existed at that time, with that box left blank. So that’s the form we’re going to use for trial because that is exactly what he filled out at that time.

[snip]

MR. LOWELL: The 4473 form is much more complicated than Mr. Hines would indicate. There’s not just one change on that form. There are three or four changes on that form.

There’s a number on the top right for the person who sold the gun’s identification number. There’s another change on it. And the idea that after the fact somebody put car registration, that’s a significant event in terms of Your Honor and the jury’s consideration because the form that they say is the critical aspect of one of the counts in this case that includes the identification being a passport is not an acceptable form of identification. It doesn’t include the person’s address. It should never have been accepted as a piece of identification. And somebody figured that afterwards. And then tried to fix it. And that should be a subject of the value of that piece of evidence in front of this Court and a jury. Those are issues we’re pursuing. And I didn’t know about the last one’s significance of when that came about until Friday.

Of course, that was before the prosecution quickly reinterviewed the gun shop guys, only to discover that their immunized gun shop owner (who, Lowell explained in his response, “drew media attention in October 2020, during the election campaign, and conspired with others shortly before the 2020 election to publicize aspects of Biden’s gun purchase”) tried to make it look like they had complied with the law after the fact.

As Lowell notes, this significantly increases the import of the immunity prosecutors have granted Palimere.

Making changes as Palimere did and submitting those to law enforcement would subject the gun shop to fines, revocation of its license, and possibly criminal penalties for falsifying a federal form.

Palimere gets to stay in business, but Hunter Biden faces prison for owning a gun for 11 days over five years ago.

I had already been wondering whether the dodgy forms explained Lesly Wolf’s decision to resolve the gun charge with a diversion agreement. All the more so given this detail: When prosecutors provided this form in discovery last October, they provided a photocopy, hiding the different color inks.

When the doctored form was reproduced to Biden in discovery, it was a black-and-white photocopy with none of the colors from the original, obscuring who filled out portions of the doctored form.

First Derek Hines hid that from Hunter Biden, and then he tried to hide it from Judge Noreika.

And remarkably, when FBI Special Agent Erika Jensen reinterviewed Gordon Cleveland (by herself) on May 16, she didn’t ask him why he used three different colored inks to fill out one form, purportedly all while Hunter Biden waited.

Timeline

October 12, 2018: Gun purchase

October 23: Hallie throws gun away

October 24: Secret Service and Delaware cops start investigating; ATF Special Agent James Risch advises shop only to hand over copy (which would hide multiple colors)

October 26: Shop sends form to ATF, without serial number

September 23, 2021: Gun shop turns over doctored physical form to ATF

April 16, 2024: On call with Lowell, prosecutors tell him he can inspect physical items; date of 302 including details about form

April 23: Gun shop manager certifies black-scanned form as authentic

April 24: Letter from prosecutors reiterates offer to inspect physical items

May 3: Deadline prosecutors impose for challenges to authenticity

May 10: Lowell asks why there are two versions of the forms

May 14: Lowell describes changes to physical form at status conference

May 16: Erika Jensen reinterviews sales clerk Gordon Cleveland (alone) and shop owner Ronald Palimere (with Hines and pursuant to a proffer)

May 20: Hines moves to exclude the doctored form

May 23: Lowell response includes multi-colored form